Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Compensation ordered - Application for costs

• [1] Haohan Qian (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Grandmetro Constructions Pty Ltd (Respondent).

• [2] This decision deals with an application for costs made by the Applicant under ss. 400A and 611 of the FW Act following a decision (Decision)[1] in which it was found that the Applicant had been unfairly dismissed. The application was opposed by the Respondent. The parties sought that the costs application be determined on the papers.

• [3] The Applicant submitted that on 1 November 2024 it made a valid Calderbank offer in the amount of $8,653.85 (Verbal Offer) to resolve the matter and had the Respondent accepted it the proceedings would have been resolved.[2]

• [4] The Applicant filed a witness statement in respect of his legal representative, Hao (David) Fan (Mr Fan) who gave evidence that on 1 November 2024 he had without prejudice discussions with the Respondnent's legal representative, Mr Corlett, and indicated that he had instructions to put forward a final settlement offer of $8,653.85, being six weeks' salary plus superannuation.[3] Mr Fan's evidence was that Mr Corlett returned his call the same day indicating that the Respondent did not agree to pay anything and that a previous offer, with non-monetary terms, remained on the table.[4]

• [5] The Applicant noted that the final offers made by the Commission require that the Respondent pay the amount set out in the Verbal Offer and the Respondent therefore did not achieve a better outcome via arbitration of the matter.[5]

• [6] This Applicant submitted that he incurred costs in the amount of $13,876.50, inclusive of GST, as a result of the Respondent failing to accept the Verbal Offer.[6] Mr Fan attached an itemised bill of costs to his statement.[7]

• [7] This Applicant submitted that the Respondent filed a response on 30 September 2024 and asserted that the Applicant's employment was terminated on 31 August 2024 for serious misconduct, that the Applicant was notified of the reason for his dismissal. However, the Applicant noted that the Commission found that the Applicant was not notified of the reason for his dismissal and or given an opportunity to respond and that the Applicant's actions were not serious misconduct stating:[8]

"[278] ... Instead of placing the blame squarely on the Applicant's shoulders it should have reflected on what actually went wrong, as identified in its own incident report concerning the incident, being a "lack of knowledge and experience", "lack of training/education on-site" and "lack of supervision", and considered the appropriate response in that context."

• [8] The Applicant submitted that Mr Wan, the Respondent's Site Manager, was at all times aware that at the time of termination, he provided a reason different from those alleged in the Show Cause Notice and Letter of Termination and notwithstanding this, the Respondent continued to defend the claim based on the Show Cause Notice and the Letter of Termination.[9]

• it would have been apparent to the Respondent at the time of filing its response that its assertion that the Applicant was properly dismissed for serious misconduct had no reasonable prospect of success; or, in the alternative

• • it would have been apparent to the Respondent after the cross examination of Mr Wan that its assertion that the Applicant was properly dismissed had no reasonable prospect of success.[10]

• [10] The Applicant referred to Thomas v MWS Pty Ltd[11] in which the Commission, when considering the concepts "should have been reasonably apparent" and "had on reasonable prospect of success" determined:

"In practical terms, a person may gain knowledge in the lead up to proceedings (when the opposing party's evidence is filed) or during the proceedings (e.g. after the cross examination of a crucial witness) which, when viewed objectively, would satisfy the test of the person's case having no reasonable prospects of success. In my opinion, It would be from that point that costs may be awarded, if the person did not take steps to recognise that their case was frivolous, untenable groundless or faulty. For an applicant, this may mean discontinuing the matter and for respondent it may mean making offers to settle a matter."

• [11] The Applicant also submitted that in determining whether the Respondent caused the costs to be incurred because of an unreasonable act or omission, the Commission is entitled to look at the behaviour of the Respondent including matters such as the proximity of the offers, the preparedness to revise settlement offers and the other terms of the offer.[12]

• [12] The Applicant referred to the matter of Roy Morgan Research Ltd v Baker in which the Full Bench[13] cited Brazilian Butterfly Pty Ltd and Charalambous[14] which considered the former ss.170CJ(2) and (3) of the now repealed Workplace Relations Act 1996 (Cth) and said:

"[43] A reasonable person, who is a party to proceedings pursuant to s.170CE, when confronted with an offer of settlement from the other party, will determine whether, and if so, how to respond to such an offer after considering all the circumstances of the case, including:

• the terms of the settlement offered in relation to the relief sought;
• the relative strengths of the parties' cases (and thus their relative prospects of success) in relation to both 'liability' and the relief sought;
• any assessment of the merits in the certificate issued by the Commission pursuant to s.170CF(2);
• the likely length and cost of proceeding to a hearing if the matter does not settle; and
• any adverse consequences that will accrue to a party if they accept a settlement on particular terms rather than successfully prosecute or defend the primary application, as the case may be.

[44] This list is not intended to be exhaustive. All of the circumstances are relevant and, as is made clear in the joint judgment in Blagojevch, there is no basis in the Act for giving primacy to any particular factor in every case".

• [13] The Applicant also referred to the following statement of the Full Bench in Brazilian Butterfly Pty Ltd and Charalambous:[15]

"In a situation where an offer was made which was not fanciful and no counter offer was made by the opposing party to bring negotiations in the range the opposing party thought was reasonable, failure to make a counter offer could, depending on the circumstances, constitute acting unreasonably and failing to agree to terms of settlement".

• [14] The Applicant submitted that: [16]

• The Respondent, after rejecting the verbal offer, did not make any counter offer or revise its earlier offer.
• The only offer made by the Respondent was effectively a 'walk-away' offer which was repeated after the making of the Verbal Offer.
• Given the result of the matter and findings made, the 'walk-away' offer made by the Respondent was not reasonable in the circumstances.
• The Verbal Offer made by the Applicant was noy fanciful and the Respondent's failure to make a counter offer in the circumstances constitutes acting unreasonably in failing to agree to terms of settlement.

• [15] The Applicant indicated that he was relying on both s.611(2)(a) and (b).[17] In respect of s.611 the Applicant referred to Thomas v MWS Pty Ltd[18]in which the Commission said the following when considering the concepts "should have been reasonably apparent" and had "no reasonable prospect of success" with s.611(2)(b):

"In practical terms, a person may gain knowledge in the lead up to proceedings (when the opposing party's evidence is filed) or during the proceedings (e.g. After the cross examination of a crucial witness) which, when viewed objectively, would satisfy the test of a person's case having no reasonable prospects of success. In my opinion, it would be from that point that costs may be awarded, if the person did not take steps to recognise that their case was frivolous, untenable, groundless or faulty. For an applicant, this may mean discontinuing the matter and for a respondent it may mean making offers to settle a matter."

• [16] The Respondent noted that in relation to s.400A of the FW Act the Applicant seeks an order on the basis that the Verbal Offer was sufficient to justify an order for costs on the basis that the Respondent did not achieve a better outcome[19] and submitted that:

• this is not the threshold that must be established in relation to s.400A;
• rather, the threshold is whether the Commission is satisfied that a party causes costs to be incurred by another party because of an unreasonable act or omission in connection with the conduct or continuation of the matter;

• • the Verbal Offer was not actually a 'Calderbank' offer as submitted by the Applicant.[20]

• [17] The Respondent pointed to the Explanatory Memorandum to the Fair Work Amendment Bill 2012 which states:

"170. The FWC's power to award costs under this provision is discretionary and is only exercisable where the first party is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party".

• it is intended that costs only be ordered under s.400A where there is clear evidence of unreasonable conduct;

• • the Applicant has failed to establish that the Resppndent's rejection of the Verbal Offer, even if it can be properly considered a Calderbank offer, amounts to an unreasonable act or omission in connection with the conduct or continuation of the matter, which is denied by the Respondent;[21]

• rather than awarding the Applicant more compensation (let alone significantly greater compensation) than the rejected Verbal Offer, the Commission's compensation order was the same amount;

• • to establish whether an act or omission is unreasonable should require a more significant discrepancy than what was reflected in the substantive outcome of the matter.[22]

• [19] The Respondent submitted that the principles on which a Calderbank offer are to be made are well established, including in Calderbank v Calderbank[23] itself and include that an offer that is otherwise made on a 'without prejudice basis' should be unambiguously identified as 'without prejudice save as to costs' when it is made.[24]

• [20] In relation to its position that the Verbal Offer was not a Calderbank offer, the Respondent submitted:

• • the Verbal Offer was said to have been made "on the same terms as those set out in [the Applicant's] letter of offer dated 28 October";[25]

• those "same terms" were those set out only in paragraph 6 of the Applicant's without prejudice letter dated 28 October 2024 (Written Offer) which relevantly states:

"...our client offers to settle the entirety of his claim on the following terms:

1. that the dismissal on 31 August 2024 be treated as a resignation;
2. that the respondent is to provide a statement of service to the applicant showing the period and position of his employment;

• c. that the respondent is to make a payment in the amount of $18,750 plus superannuation (equal to 13 weeks' salary)";[26]

• • to the extent that the Verbal Offer reflected a reduction in the amount that the Applicant was willing to accept compared to the above, the only other 'terms' were those reflected in paragraphs 6(a) and 6(b) of the Written Offer, being treatment of the Applicant's dismissal as a resignation and provision of a statement of service;[27]
• • the Applicant is seeking to rely on inference and this is not sufficient.[28]

• [21] In reply the Applicant submitted that the Verbal Offer was made "on the same terms as those set out in the letter of offer", not on the same terms as those set out in paragraph 6 of the Written Offer, and the Respondent's limitation on the terms of the Verbal Offer does not have ant factual or legal basis. [29]

• [22] The Applicant noted that the terms set out in the Written Offer include, amongst other things, the following:

"[7] The above offer is made in accordance with the principles in Calderbank v Calderbank 1975] 3 All ER 333...

[9] If the above offer is rejected or allowed to lapse by your client and your client does not achieve a better result at the final hearing, our client will:

a. Tender this letter on any application for costs; and

b. Seek an order that the respondent pay our clients costs of the proceedings from the date of this letter..."[30]

• [23] The Applicant submitted that the verbal offer was also made on the terms set out in paragraphs 7 and 9 of the Written Offer and was therefore a valid Calderbank offer.[31]

• [24] In relation to s.611 of the FW Act, the Respondent pointed to the Explanatory Memorandum to the Fair Work Bill 2009 (Cth) which states:

"2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.

2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success".

• the application does not make out any exceptional circumstances;

• • the application only seems to suggest that given the Applicant's dismissal by the Respondent was found to be unfair, it followed that the Respondent had not reasonable prospect of success.[32]

• [26] The Respondent submitted that the principles relating to the operation of s.611(2)(b) are well established in decisions such as Baker v Salva Resources Pty Ltd[33] which was reproduced in Australian Mines and Metals Association Inc; Master Builders Australia Ltd v Construction, Forestry, Maritime and Energy Union as follows:

"[10] The concepts within s.611(2)(b) 'should have been reasonably apparent' and 'had no reasonable prospect of success' have been well traversed:

• 'should have been reasonably apparent' must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• • a conclusion that an application 'had no reasonable prospect of success' should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."[34]

• • At the time it defended the Applicant's substantive application, its understanding, as accepted by the Commission at paragraph [245] of the Decision, was that the Applicant had incorrectly directed a contractor to drill a core hole that penetrated a lift shaft and, in doing so endangered the safety of any person who may have been inside the lift shaft that the time and it should be borne in mind that this occurred on a construction site.[35]
• • The Commission found that "the Applicant was not without fault in his approach to the drilling work", had "prioritised task completion over safety" and checked to see if workers were in the lift shaft in a manner that was unsafe.[36]
• • These findings do not support the Applicant's contention that the Respondent's approach to the substantive claim was "manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable".[37]
• • While the Commission found that the reason relied on by the Respondent in dismissing the Applicant was not a valid reason[38] it did find that "there was a valid reason for the dismissal related to both the Applicant's conduct and capacity".[39]
• • The fact that the Applicant was dismissed for serious misconduct should have no bearing on the Commission's consideration of s.611(2)(b) as this is something that the Commission assessed in determining the appropriate amount of compensation to award the Applicant. [40]
• • The Commission cannot be objectively satisfied on anything put forth by the Applicant that it was reasonable apparent to the Company that it had no prospect of success, particularly since the application and Applicant's submissions fail to address the default 'general rule' set out in s.611(1) that 'a person must bear the person's own costs in relation to a matter before the [Commission]".[41]

• [28] The Respondent submitted that the Commission's power to award costs is discretionary and involves a two-stage process whereby:

1. the Commission must decide whether there is power to award costs, and, if there is power;

• 2. consider whether the discretion to award costs is appropriate.[42]

• [29] The Respondent submitted that while the Commission has the power to award costs pursuant to either s.611(2) and/or s.400A, it is not appropriate for the Commission to utilise its discretion to award costs as the Applicant has not made out the exceptional circumstances required to trigger s.611(a) or s.400A.[43]

(1) A person must bear the person's own cost in relation to a matter before the Commission.

(2) However, the Commission may order a person (first person) to bear some or all of the costs of another person in relation to an application to the Commission if:

(a) the Commission is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the Commission is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

• [31] Section 400A of the FW Act provides:

(1) The Commission may make an order for costs against a party to a matter arising under Part 3-2 (the first party) for costs incurred by the other party to the matter if the Commission is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The Commission may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the commission's power to order costs under section 611.

• [32] A consideration of an application for costs made under both s.611 and 400A of the Act involves firstly determining whether there is a power to award costs and, if so, then determining whether to exercise the discretion to award costs. The second step involves consideration of whether, in all of the circumstances, an order for costs is appropriate.[44]

Section 611(2)(a) - Is the Commission satisfied that Respondent responded to the application vexatiously?

• [33] In Nilsen v Loyal Orange Trust North J said the question as to whether a proceeding was instituted vexatiously looks to the motive of the applicant and that a "proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage."[45] Noting that the ground that an application has been made "vexatiously" is an alternative ground to the ground based on lack of reasonable cause, the ground may apply where there is a reasonable basis for instituting the proceeding.[46]

• [34] In Chruch v Eastern Health t/as Eastern Health Great Health and Wellbeing[47]a Full Bench of the Commission said:

"[40] As we have mentioned, the question of whether an application was made vexatiously turns on the motive of the applicant in making the application. Motive can be inferred from, among other things, the surrounding circumstances, the applicant's conduct and the merits of the application itself."

• [35] I accept that in responding to the Applicant's substantive application, the Respondent had understood that that the Applicant had incorrectly directed a contractor to drill a core hole that penetrated a lift shaft and, in doing so endangered the safety of any person who may have been inside the lift shaft. In those circumstances I accept that it believed it had an arguable case in response to the substantive application, and this motivated it to defend the claim. There is no evidence that it put forward a response or position intended to embarrass the Applicant, or to gain a collateral advantage. In the circumstances I do not consider that the Respondent responded vexatiously to the substantive application.

Section 611(2)(a) - Is the Commission satisfied that Respondent responded to the application without reasonable cause?

• [36] In General Steel Industries Inc v Commissioner for Railways (NSW) the High Court found that the test of 'without reasonable cause' has variously been expressed as:

• "so obviously untenable that it cannot possibly succeed";
• "manifestly groundless";
• "so manifestly faulty that it does not admit of argument";
• "discloses a case which the Court is satisfied cannot succeed";

• • "under no possibility can there be a good cause of action". [48]

• [37] In Kanan v Australian Postal and Telecommunications Union, Wilcox J said:

"It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the preceding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear the proceeding must fail, it may properly be said that the preceding lacks a reasonable cause."[49]

• [38] In Keep v Performance Automobiles Pty Ltd the Full Bench said:

"[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (Church).[50] Church is authority for the following propositions:[51]

• (i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.[52]

• (ii) A party cannot be said to have made an application 'without reasonable cause' within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. [53]

• (iii) One way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.[54]

• (iv) The test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgment, that is, 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless' or 'discloses a case which the Court is satisfied cannot succeed."[55]

• [39] The fact that the substantive application was not decided in favour of the Respondent does not mean that the test of 'without reasonable cause' has been met. The facts apparent to the Respondent in responding to the Application included that the Applicant incorrectly directed a contractor to drill a core hole that penetrated a lift shaft and, in doing so, created a risk to the health and safety of any person who may have been inside the lift shaft. There were disputed facts that were relevant including dealing with the nature of training, supervision and instruction provided to the Applicant which required determination by the Commission as well as disputed facts about the process followed in effecting the dismissal. In these circumstances it cannot be said that the Respondent's position was so obviously untenable that it could not possibly succeed, manifestly groundless or disclosed a case which the Commission was satisfied could not succeed. I find that the Respondent did not respond to the application without reasonable cause.

Section 611(2)(b) - Is the Commission satisfied that it should have been reasonably apparent to the Respondent that its response to the application has no reasonable prospect of success?

• [40] In Qantas Airways Limited v Carter the Full Bench found that "should have been reasonably apparent" imports an objective test, directed to a belief formed on an objective basis rather than a subjective test.[56]

• [41] As noted by the Respondent, in Baker v Salva Resources Pty Ltd[57] the Full Bench said:

"[10] The concepts within s.611(2)(b) 'should have been reasonably apparent' and 'had no reasonable prospect of success' have been well traversed:

• 'should have been reasonably apparent' must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• • a conclusion that an application 'had no reasonable prospect of success' should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."[58]

• [42] The matter involved circumstances where the Applicant:

• incorrectly directed a contractor to drill a core hole that penetrated a lift shaft and, in doing so, created a risk to the health and safety of any person who may have been inside the lift shaft;

• • likely knew that anything that affected the lift shaft was unsafe while someone was in there;[59]
• • was not without fault in his approach to the drilling work.[60]

• [43] The Commission found that while the Applicant's inexperience and poor judgement were contributing factors to the incident, the Respondent's deficiencies in training and supervision were also significant contributing factors and that the Applicant's conduct did not amount to serious misconduct as alleged by the Respondent. Relevant to this outcome was the the determination of a number of disputed facts on the balance of probabilities, including the nature of training and instruction provided to the Applicant. Despite the Commission finding that the Respondent had not made out serious misconduct as it had alleged, the Commission did make a finding that there was a valid reason for the dismissal before considering the additional factors that the Commission was required to weigh up in its assessment of whether the dismissal was unfair.

• [44] This was not a case where the Respondent's case in reply was so manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. In the circumstances of this matter and applying an objective test, I am not satisfied that it should have been reasonably apparent to the Respondent that its response to the application had no reasonable prospects of success.

Section 400A(1) - Is the Commission satisfied the Respondent caused costs to be incurred by the Applicant because of an unreasonable act or omission of the Respondent in connection with the conduct or continuation of the matter?

• [45] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) states:

"169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

170. The FWC's power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party."

• [46] By way of summary, the Applicant submitted that the Respondent has acted unreasonably by:

• rejecting the Verbal Offer;
• not revising its earlier offer and therefore not making a counter offer to the Verbal Offer.

• [47] As I have earlier found, the Respondent presented an arguable case to the Commission in circumstances where the Applicant incorrectly incorrectly directed a contractor to drill a core hole that penetrated a lift shaft resulting in a risk to health and safety. While the Verbal Offer was a reasonable offer, in circumstances where the Respondent presented an arguable case it was not unreasonable for the Respondent to reject the Verbal Offer and proceed to arbitration. I am also unpersuaded that there was any critical turning point during the cross examination of Mr Wan that would render the continued defence of the application beyond that point as an unreasonable act or omission.

• [48] I am not satisfied that rejecting the Verbal Offer, failing to revise its earlier offer, failing to make a counter offer, or the Respondent otherwise continuing its defence of the application were unreasonable acts or omissions that would warrant an order for costs.

• the Respondent responded to the application vexatiously;
• the Respondent responded to the application without reasonable cause;
• it should have been reasonably apparent to the Respondent that its response to the application has no reasonable prospect of success;
• the Respondent caused costs to be incurred by the Applicant because of an unreasonable act or omission of the Respondent in connection with the conduct or continuation of the matter.

• [50] As such, I find that the Commission does not have the power to award costs under either s.611 or 400A of the Act. The application for costs is dismissed.

[1] [2025] FWC 737.

[10] Applicant's Reply Submissions at [15].

[11] [2019] FWC 7324.

[12] Applicant's Submissions in Reply at [9] citing Department of Employment and Workplace Relations v Oakley [2005] AIRC 447 at [41].

[13] [2014] FWCFB 1175 at [13].

[14] PR968915 on 25 August 2006.

[15] PR968915 on 25 August 2006 at [27]

[16] Applicant's Reply Submissions at [12].

[17] Applicant's Reply Submissions at [13].

[18] [2019] FWC 7234.

[19] Respondent's Submissions at [5].

[20] Respondent's Submissions at [6], [10].

[21] Respondent's Submissions at [11].

[22] Respondent's Submissions at [12].

[23] [1975] ALL ER 33.

[24] Respondent's Submissions at [18].

[25] Respondent's Submissions at [15].

[26] Respondent's Submissions at [16].

[27] Respondent's Submissions at [17].

[28] Respondent's Submissions at [18].

[29] Applicant's Submissions in Reply at [3].

[30] Applicant's Submissions in Reply at [4].

[31] Applicant's Submissions in Reply at [5].

[32] Respondent's Submissions at [25].

[33] [2011] FWAFB 4014 at [10].

[34] [2019] FWCFB 649 at [5].

[35] Respondent's Submissions at [29].

[36] Respondent's Submissions at [30].

[37] Respondent's Submissions at [30] citing as Baker v Salva Resources Pty Ltd [2011] FWAFB 4014.

[38] Respondent's Submissions at [31] citing Mr Haohan Qian v Grandmetro Constructions Pty Ltd [2025] FWC 737 at [259].

[39] Respondent's Submissions at [31] citing Mr Haohan Qian v Grandmetro Constructions Pty Ltd [2025] FWC 737at [246].

[40] Respondent's Submissions at [31] citing Mr Haohan Qian v Grandmetro Constructions Pty Ltd [2025] FWC 737at [308].

[41] Respondent's Submissions at [32].

[42] Respondent's Submissions at [26].

[43] Respondent's Submissions at [27].

[44] McKenzie v Meran Rise Pty Ltd [2000] AIRC 1118 at [7].

[45] [1997] IRCA 267; (1997) 76 IR 180, 181, citing Attorney-General v Wentworth (1988)14 NSWLR 481, 491.

[46] [1997] IRCA 267; (1997) 76 IR 180, 181.

[47] [2014] FWCFB 810 at [41].

[48] [1964] HCA 69; (1964) 112 CLR 125, 131.

[50] Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.

[51] [2015] FWCFB 1956 at [17].

[52] [2014] FWCFB 810 at [27].

[53] [2014] FWCFB 810 at [30].

[54] See Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, cited with approval in Church at [30

[55] Heidt v Chrysler Australia Limited (1976) 26 FLR 257 at [272 - 273]; Geneff v Peterson (1986) 19 IR 40 at [87-88]; Hatchett v Bowater Tutt Industries Pty Ltd [1991] FCA 188; (1991) 28 FCR 324 at 327; Re Ross and others, Ex Parte Crozier [2001] FCA 1665; (2001) 111 IR 282 at [12]; Re AustralianEducation Union (NT Branch) (No.2) [2011] FCA 728 at [30]. Also see Wright v Australian Customs Service, PR926115, 23 December 2002 per Giudice J, Williams SDP and Foggo Cand Church at [33].

[56] [2013] FWCFB 1811 at [19].

[57] [2011] FWAFB 4014 at [10].

[58] [2019] FWCFB 649 at [5].

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